Australia: NSW waste industry in the spotlight: How are waste operators in NSW regulated?

Last Updated: 11 October 2017
Article by Todd Neal and Katherine Edwards


Waste operators and waste transport businesses in New South Wales should be aware of the regulatory environment surrounding their activities and the penalties that might arise from unlawful activities. We take a look at who the regulators are, their powers and responsibilities, and the implications for the waste industry.


The NSW waste industry has recently been thrown into the spotlight by a Four Corners investigation that aired on 7 August 2017, Trashed: The dirty truth about your rubbish. It exposed a number of serious issues within the $12.5 billion per annum waste industry and has resulted in calls for a national strategy to be developed to deal with the current state of the waste industry.

Three issues that are now at the forefront of the government's and the community's mind include:

  1. transport of waste generated in NSW to Queensland
  2. illegal dumping that is prevalent throughout communities
  3. illegal stockpiling of waste

The regulatory environment dealing with these matters is complex and includes statutes, regulations and various policies. While navigating the system can be time consuming and costly, so too can the rectification of breaches. To that end, given the increased enforcement budget of the NSW Environment Protection Authority (EPA) and the significant public interest in this issue, waste operators and waste transport businesses will need to be aware of the regulatory environment and the penalties that might arise from unlawful activities.


  • Local councils: The powers of local councils in respect of waste are primarily found in the Local Government Act 1993 (NSW) (LG Act) and the Environmental Planning and Assessment Act 1979(NSW) (EP&A Act). Councils are generally responsible for assessing development applications for the use of land for waste management or resource recovery facilities. In addition, councils also have illegal dumping units and environmental units to monitor land uses in the local area and to issue notices where necessary.
  • EPA: With respect to the waste industry, the EPA is responsible for assessing and determining Environment Protection Licence (EPL) applications. EPLs are required where a Scheduled Activity that is set out in Schedule 1 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) is carried on at a premises. It is the EPA's job to regulate these premises to protect the environment. The EPA's powers are generally set out in the POEO Act, as well as the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) and the Protection of the Environment Operations (General) Regulation 2009 (NSW).
  • Department of Planning and Environment: The Department of Planning and Environment is responsible for approving larger, State significant development applications. However, their powers are still found in the EP&A Act. While the Department of Planning and Environment is involved with larger scale and more intense operations, there is still a significant amount of hands-on investigation work that is undertaken by this Department relating to the enforcement of conditions of consent.


Regulatory authorities conduct investigations to determine whether companies or individuals have committed an offence. Well known offences in the waste industry include the unlawful depositing of waste and the use of a premises without an EPL.

In conducting an investigation, regulatory authorities have the following powers:

Entry and search: There are equivalent powers under Part 7.4 of the POEO Act to section 119D and section 119F of the EP&A Act for authorised officers to enter premises for the purposes of investigations. A similar provision also exists under section 192 of the LGA.

Where an authorised officer lawfully enters a premises, that officer has the power to, for example, take samples, take photographs or videos, require records to be produced for inspection and copy records. The powers are broad, but not without limit.

Require information and records: More commonly used investigative powers are those that require persons to furnish any information and or records to the regulatory authority. Similar provisions can be found in Part 7.3 of the POEO Act and section 119J of the EP&A Act.

Formal requests for information or records are often drafted with significant breadth in an attempt to capture any and all relevant information that may assist a regulatory authority in their investigation. Careful consideration needs to be given as to whether documents held are within or outside of the scope of the formal request and whether they are lawfully able to be sought.

Formal interview: Regulatory authorities have the investigative power to require a person to answer questions. Similar provisions are contained in Part 7.5 of the POEO Act and section 119K of the EP&A Act. A regulatory authority may have a specific person or persons whom they wish to question, or alternatively, require a corporation to nominate a person authorised to answer questions on behalf of the corporation. A person who is to be interviewed by a regulatory authority should be well prepared and advised on what their rights are.

Enforcement action for offences: The legislative framework creates offences for persons who:

  • neglect or fail to comply with a requirement of the relevant piece of legislation without a lawful excuse
  • furnish information or do things in purported compliance with a requirement of the relevant piece of legislation knowing that it is false or misleading in a material respect
  • willfully delay or obstruct an authorised officer in the exercise of their powers

Prosecutions arise from a regulatory authority carrying out an investigation into whether an offence is likely to have been committed. The level of evidence required by the regulatory authority is dependent on the forum they intend to prosecute the matter in, i.e. the Local Court or the NSW Land and Environment Court. The burden of proof in criminal proceedings is "beyond reasonable doubt" which is higher than the standard required to be met in civil proceedings which is "on the balance of probabilities".


Some of the issues involved in the criminal prosecution of a waste matter were exposed in Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Building Recyclers Pty Ltd; Environment Protection Authority v Foxman [2015] NSWLEC 105.

The EPA successfully prosecuted six offences against the defendants in relation to the transportation and placement of waste on land.

The evidence that was relied on by the prosecutor was collected over a number of years, and included:

  • samples taken from the site
  • records of interviews undertaken with relevant persons
  • responses to statutory notices

In this case, the defendants were ordered to pay $390,000, plus investigation costs of $4,646 and the prosecutors' unknown legal costs, which are on average above $70,000 based on recent Judicial Commission statistics we have seen. The defendants were also ordered to pay for a notice to be placed in the Sydney Morning Herald and Inside Waste to inform the public of the outcome of the matter. In addition, the Court ordered Mr Phillip Foxman and Foxman Environmental Development Services Pty Ltd to remove or procure the removal of the illegally filled material.

Cases such as this demonstrate that those involved with the management of waste cannot afford to ignore the risks, and that processes and systems need to be in place to ensure compliance with the regulatory framework.


Penalties can range from an amount up to $15,000 for a penalty notice to hundreds of thousands of dollars in fines imposed by the Court, as well as the prosecutors' legal fees if successfully prosecuted.

Given the more inquisitorial nature of the powers available to regulators, it is important to ensure that the regulatory authority is acting within its powers. This requires a careful examination of the empowering legislation together with an analysis of the request or actions already undertaken by regulatory officers.

In this time of scrutiny for the NSW waste industry, and in particular given the renewed focus on enforcement amongst the EPA and Department of Planning and Environment, waste industry operators need to be aware of the powers and obligations available to regulatory authorities. It is trite to say but they need to ensure the correct approvals are in place and that their operations comply with these approvals or they run the risk of enforcement action being undertaken against them.a

Todd Neal
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Todd Neal
Katherine Edwards
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions